Canada: Pipeline Opponents Face Significant Obstacles In Securing Injunctive Relief

With the federal government recently approving major pipeline projects, it is expected that environmental and other special interest or lobbying groups will commence actions in an attempt to prevent or delay those projects from proceeding, which may include applying for injunctive relief. Those opponents face significant obstacles in obtaining such relief.

While the test for an injunction is well settled and set-out in the leading decision of the Supreme Court of Canada (SCC) in RJR-MacDonald Inc. v. Canada (Attorney General) (RJR), there are some interesting aspects of applying that test in the context of proposed pipelines.


While the first branch of the test requires the applicant to establish a serious issue to be tried, that threshold is generally quite low. The SCC in RJR noted that, generally, so long as the application is neither vexatious nor frivolous, the court should proceed to consider the second and third parts of the tripartite test.

The SCC identified, however, three exceptions to the general rule that a court should not engage in a prolonged examination of the merits with respect to the first branch of the test: (i) when the result of the motion will, in effect, amount to a final determination of the action; (ii) when the question of constitutionality presents itself as a simple question of law alone; and (iii) the court kept open the possibility for an exception in non-Charter cases in which the factual record is largely settled prior to the application being made.

In the context of injunctions relating to pipelines, there is another important factor to consider when determining if there is a serious issue to be tried. A number of decisions have held that there is no serious issue to be tried given that there is often a robust regulatory process that has not only approved a pipeline but also had jurisdiction over it. In those cases, the courts have found that injunctive relief is nothing more than a collateral attack on the regulatory decision-making process and denied that relief.

Given the time, expense and related approval process involved with pipelines, in considering an injunction against a pipeline, the court should engage in a closer examination of the merits as granting an interim injunction would practically, in many cases, amount to a final determination.


The second branch of the test requires the applicant to establish irreparable harm, which is typically the most difficult to establish. Generally speaking, the applicant must establish injury that is beyond the possibility of repair by money.  It must establish harm of such a nature that no fair and reasonable redress may be had unless injunctive relief is granted and the refusal to grant the injunction would be a denial of justice. "Irreparable" typically refers to the nature of the harm suffered rather than its magnitude; it means harm that either cannot be quantified in monetary terms or that cannot be cured.

Many injunction applications fail on this branch of the test largely because damages are often an adequate remedy and the evidence of irreparable harm tendered is often speculative in nature. In the context of challenges to pipelines, applicants frequently make allegations of health and other claimed environmental consequences.  Those allegations are often speculative in nature and do not satisfy the evidentiary requirements for this branch of the test.

It should be emphasized that the fact that damages could be difficult to calculate does not, in itself, support a finding of irreparable harm. Mere difficulty in calculating damages does not necessarily mean that damages are not an appropriate remedy.


The final branch of the test, known as the balance of convenience branch, requires a determination as to which of the two parties will suffer the greater harm from the grant or refusal of an interlocutory injunction pending the disposition of the matter at trial on the merits.

The expenditure of money, time and commercial activity, including obtaining regulatory approvals, has been recognized by the courts as an important consideration in denying injunctive relief. This is particularly so in the context of major pipelines. For example, in Dastous v. Canadian Natural Resources Limited, the court noted that an injunction would have the result of delaying a substantial development project — a project that, at full production, would supply hundreds of thousands of barrels per day of crude oil over a significant period of time. In those circumstances, the court found that the balance of convenience favoured the denial of the injunction since to grant it would undermine a project that was "critical in sustaining Canada's oil needs for the future."

In addition, it is a common and well established practice that an applicant must give an undertaking to be responsible for, and pay forthwith, any damages suffered by the respondent if it is ultimately determined that an interim injunction should not have been granted. A requirement to post an undertaking is codified in some jurisdictions. The lack of an undertaking can be fatal to such applications.

Although, in exceptional circumstances, the court can relieve against the requirement to post an undertaking, the underlying purpose of an undertaking is to protect a respondent from the damages and costs arising from the granting of an interlocutory injunction which is ultimately set aside at trial. The courts have recognized the importance of giving an appropriate, meaningful and enforceable undertaking as a prerequisite to obtain injunctive relief. Moreover, the undertaking must be provided in advance of the hearing to allow the respondent time to assess the scope and adequacy of the undertaking. In those circumstances, given the significant investments at stake, the courts would likely require a sizable undertaking to be meaningful in the pipeline context given the huge monetary amounts involved.  That obstacle would likely be overwhelming for most applicants to provide.


While opposition by way of the commencement of court proceedings may occur in connection with one, some, or all of the proposed pipelines, opponents will face very difficult obstacles in obtaining injunctive relief from the court, especially in circumstances where regulatory and other approvals have approved the pipelines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions